Ayishabi and others v. K.M. Abdul Kader and Santosh and The National Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## **`MACA NO. 2124 OF 2012`** ``` AGAINST THE AWARD DATED 10.05.2010 IN OP(MV) 1098/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONERS:`** ``` 1AYISHABI W/O. VEERAN BABU, PADIYATH PUTHENKATTIL HOUSE, PATHAZHAKKAD P.O., SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, (WIFE OF DECEASED VEERAN BABU) 2SANJEER MOHAMMED S/O. VEERAN BABU, PADIYATH PUTHENKATTIL HOUSE, PATHAZHAKKAD P.O., SREENARAYANAPURAM VILLAGE, KODUNGALLUR, REP. BY THE IST APPELLANT BEING THE POWER OF ATTORNEY HOLDER 3SABEER S/O. VEERAN BABU, PADIYATH PUTHENKATTIL HOUSE, PATHAZHAKKAD P.O., SREENARAYANAPURAM VILLAGE, KODUNGALLUR, REP. BY THE IST APPELLANT BEING THE POWER OF ATTORNEY HOLDER. 4KATHIJA SONY D/O. VEERAN BABU, PADIYATH PUTHENKATTIL HOUSE, PATHAZHAKKAD P.O., SREENARAYANAPURAM VILLAGE, KODUNGALLUR. ``` ``` BY ADVS. M.SHAJU PURUSHOTHAMAN SRI. K.S. RAJESH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.M. ABDUL KADER S/O. MOIDEEN, NANAPURAM (KANANPURAM) HOUSE, VATTEKKATTUPADI, PERUMBAVOOR, ERNAKULAM DISTRICT - 683 542. ``` ``` 2SANTHOSH S/O. KARUNAKARAN, NAGELIVEETIL HOUSE, BACK SIDE OF SANJO HOSPITAL, PERUMBAVOOR, ERNAKULAM DISTRICT - 683 542. ``` ``` MACA NO. 2124 OF 2012 ``` ``` 2 ``` ``` 3THE NAITONAL INSURANCE CO. LTD. PERUMBAVOOR BRANCH - 683 542. ``` ``` BY ADVS. SRI.S.K.AJAY KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2124 OF 2012 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.1098/2006 on the files of the Motor Accident Claims Tribunal, Irinjalakkuda. The said claim petition was submitted by them seeking compensation for the death of one Doctor, Veeran Babu, due to the injuries sustained in a motor accident that occurred on 20.05.2003. 2. The accident occurred when the car driven by the deceased was hit by a tempo van bearing Registration No.KL 7Q 9201. The 2nd respondent was the driver. The 1st respondent was the owner and the 3rd respondent was the insurer of the said tempo van. The deceased was a Doctor by profession with a monthly income of Rs.10,000/-. The claim petition was submitted in such circumstances seeking compensation. 3. The 3rd respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy for the tempo van. However, they disputed the liability on various grounds, including violation of policy conditions. The quantum of compensation was also disputed by them. ``` MACA NO. 2124 OF 2012 ``` ``` 4 ``` 4. The evidence in this case consists of Exts.A1 to A4 from the side of appellants and no evidence was adduced by the respondents. After the trial, the Tribunal arrived at the conclusion that the accident occurred due to the negligence on the part of the 2nd respondent in driving the tempo van, and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.6,85,000/- and the said amount was directed to be deposited with interest @ 7% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.Shaju Purushothaman, learned counsel appearing for the appellants and Sri.S.K.Ajay Kumar, learned counsel appearing for the 3rd respondent. 6. The only question that arises for consideration is whether any enhancement of compensation is warranted or not. On going through the quantum of compensation awarded by the Tribunal under various heads, I find that the same was grossly inadequate and requires reconsideration. The first aspect to be ``` MACA NO. 2124 OF 2012 ``` ``` 5 ``` noticed is with regard to the compensation for loss of dependency. Even though the Tribunal accepted the monthly income as Rs.10,000/-, which appears to be in tune with the evidence adduced in the form of income tax returns produced as Ext.A4, the multiplier applied was not correct. As per **Sarla Verma & Ors.** **v. Delhi Transport Corporation [(2009) 6 SCC 121],** the proper multiplier should have been 9, considering the fact that the deceased was aged 58 years at the time of the accident, but the Tribunal accepted only 8. Similarly, the deceased left behind 4 dependents, but the deduction made was 1/3rd. In such circumstances, the revision of compensation for loss of dependency has to be effected by strictly following the principles laid down by the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** and while doing the said exercise, the amount would come to Rs.8,91,000/- [(10,000 + 10%) x 12 x 9 x ¾]. The amount already awarded by the Tribunal is Rs.6,40,000/- and the additional compensation under this head would come to Rs.2,51,000/-. 7. When moving on to the other heads, it can be seen ``` MACA NO. 2124 OF 2012 ``` ``` 6 ``` that the Tribunal awarded only Rs.5,000/- towards funeral expenses, whereas the actual amount should have been Rs.15,000/- in the light of **Pranay Sethi (supra)** . Accordingly, a further sum of Rs.10,000/- is awarded. Similarly, no amount is seen awarded towards loss of estate, whereas in **Pranay Sethi (supra)** , it was contemplated that an amount of Rs.15,000/- is to be awarded under the said head. Therefore, the said amount is granted. 8. The next head which requires consideration is the loss of consortium. The appellants being the wife and children of the deceased are entitled to compensation for loss of consortium in the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760],** at the rate of Rs.40,000/- each, thereby making a total amount of Rs.1,60,000/- under this head. The Tribunal already awarded Rs.15,000/- towards loss of consortium and a further sum of Rs.15,000/- towards loss of love and affection. Since it is already held in **Satinder Kaur (supra)** ``` MACA NO. 2124 OF 2012 ``` ``` 7 ``` that when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection, Rs.15,000/- awarded by the Tribunal for loss of love and affection, is adjusted against the additional compensation fixed for loss of consortium. Accordingly, the additional amount payable for loss of consortium is determined as Rs.1,30,000/-. Thus, the total additional compensation is determined as Rs.4,06,000/- (2,51,000 + 10,000 + 15,000 + 1,30,000). 9. In the result, this appeal is allowed. The award dated 10.05.2010 passed by the Motor Accident Claims Tribunal, Irinjalakkuda in O.P.(M.V.) No.1098/2006 is hereby modified by granting an additional compensation of Rs.4,06,000/- (Rupees four lakh and six thousand only) and the said amount shall be deposited by the 3rd respondent with interest @ 8% per annum from the date of petition till realisation and the said amount shall be deposited within a period of three months from the date of receipt of a copy of this judgment. As the delay of 786 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the ``` MACA NO. 2124 OF 2012 ``` ``` 8 ``` said period, the 3rd respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further clarified that the claimants shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs